ü    Why are lawyers the only American profession to be truly and completely self-regulated?

ü    Why is it that the attorney-client privilege is the oldest and most jealously protected professional privilege?

ü    Why is it that the Supreme Court has repeatedly struck down bans on commercial speech, except for bans on in-person lawyer solicitations and some types of lawyer advertising?

ü    Why is it that the Miranda right to consult with an attorney is more protected than the right to remain silent?

ü    Why is legal malpractice so much harder to prove than medical malpractice?

 

These questions and more are explored by University of Tennessee Law School Professor Benjamin Barton in his article, Do Judges Systematically Favor the Interests of the Legal Profession?  His Article is premised on a jurisprudential hypothesis that many legal outcomes can be explained (and future cases predicted) by posing a simple question: Is there a plausible result in this case that will significantly affect the interests of the legal profession? If so, the case will always be decided in the way that offers the optimal result for the legal profession. The article presents theoretical support from the new institutionalism, cognitive psychology and economic theory and analyzes supporting cases implicating constitutional law, torts, professional responsibility, employment law, evidence, and criminal procedure. The Article concludes with observations and consideration of whether our judiciary should be staffed by lawyer-judges.

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